On Monday 10 November 2014, the government will seek to persuade MPs to vote to opt in to the EAW, a mechanism which is designed to facilitate straightforward extradition between Member States and has been widely criticised for amounting to a disproportionate interference with the rights of the individual against that of the state.
The government has paid lip-service to this criticism by implementing new bars to extradition – amongst others, a forum bar, a new proportionality bar and a bar preventing extradition in absence of a prosecution decision. In fact, the actual provisions are so circumscribed that it is hard to see how they will provide better outcomes. A closer look at the government’s actions in relation to EU justice in fact shows a growing tendency to opt out of EU measures which could redress the imbalance between the rights of the state and the individual occasioned by measures such as the EAW.
The EAW came into being through the Framework Decision of 2002, and in doing so brought the concept of mutual recognition and enforcement of criminal decisions into law across all Member States. It was not until the Stockholm Programme in 2009 that the EU began to consider the development of the protection of the rights of the individual, leading to a “roadmap” of procedural rights: specifically, the right to interpretation and translation in criminal proceedings, the right to access to information and a lawyer, a guarantee of legal aid, procedural safeguards for children, and the protection of the presumption of innocence.
These Directives are a step (albeit a small one) towards the parallel development of the rights of the individual across Europe, yet the UK has opted out of the last three. The debate on Monday will not, sadly, allow MPs to vote to opt back in to these Directives. A ministerial statement on 1 September 2013 gave the reasons for this opt out. Whilst the ministerial statement regarding the Directive on the presumption of innocence asserts that the presumption of innocence “is a long-standing principle of the common law” it also states that the proposal would require some significant changes to UK laws and practice if it were accepted in its current form.
In doing so, it implicitly acknowledges that the UK now lags behind its EU neighbours in the application of what was once “the golden thread” running throughout “the web of the English Criminal Law.” In relation to the Directive on procedural safeguards for children, the government suggests that the changes that would be required if the UK opted in would bring “no obvious benefit”. Similar reasons are given in relation to all three directives. In relation to criminal legal aid, for example, Chris Grayling’s ministerial statement reads “the right to criminal legal aid is already guaranteed by Article 6 of the European Convention on Human Rights, and of course UK laws and practice are compliant with that” blithely disregarding the fact that his party proposes to leave the Convention at the first available opportunity.
Moreover, just two and a half weeks after that ministerial statement, the High Court ruled that the process Grayling followed in attempting to reform criminal legal aid in the UK was “so unfair as to result in illegality.
Theresa May’s statement on the wider opt out in July 2013 trumpeted reforms to the Extradition Act to “increase the protections offered to those wanted for extradition, particularly British citizens” but implemented these reforms in such a way as to neuter their effectiveness at source. This can be explained in one of two ways. Either there is a schizophrenia within government which swings between a desire to be seen as embracing “law and order” (and thus cross-border co-operation in criminal matters) and a wish to be seen as the stalwart defender of the British public against the EU, occasioned by the conflation of the EU, the European Convention on Human Rights and Abu Qatada across much of the media.
An alternative explanation is that the government simply wish to exploit the opportunity to increase the powers of the state while suggesting, as is of course politically expedient, that they are looking out for the interests of the individual. The government’s opt out from the Directives would tend to suggest the latter.