European Arrest Warrants (EAW’s) are valid throughout all Member States of the EU and, once issued, require the receiving Member State to arrest and transfer a criminal suspect or sentenced person to the issuing state, so that the person can be put on trial or complete a detention period. In 2008, around 13,500 EAW’s were issued across Europe (up from 3000 in 2004), and 515 people were extradited from the UK.
If a UK company has committed a regulatory offence and a prosecution is brought against a director in their personal capacity (whether or not the company itself is prosecuted), an EAW could be served on that director if he or she is based outside the UK. The effect would be that they would be forced to return to the UK to face criminal charges.
EAW’s were intended for major criminals (for example, drug importers, fleeing bank robbers) and to combat terrorism, but have been criticised for their usage for minor offences, including the theft of 10 chickens (Romania); unintentionally receiving a stolen mobile phone (Poland); and the theft of £20 worth of petrol (Czech Republic). They have also been used in relation to white collar crime, for example in relation to failed businesses and fraud. In April 2010, an EAW was used to extradite back to the UK a member of a fraud gang who dishonestly manipulated the VAT system through the import and export of computer processing units. A recent case in Germany has suggested that EAW’s have to be proportional, but this is not a requirement of the legislation itself.
The circumstances in which EAW’s can be issued are limited, but they can be used for health and safety and environmental offences that carry a maximum custodial sentence of 12 months or more or, where a sentence has been passed or a detention order has been made, for sentences of at least four months. They must also be for the purposes of a criminal prosecution (not investigation), and so can only be used once the decision to prosecute has been made. Extradition must take place within 90 days of arrest or within 10 days if the arrested person consents to surrender.
Concerns about the widespread use of the EAW stem from the lack of judicial discretion. Before the system was introduced, British courts or the British Government could stop an extradition if it was unjust. Now they have to rubberstamp requests for extradition from other EU countries. Further concerns have been raised as EAW’s have, in some instances, been issued many years after the offence has been committed or in relation to convictions following an unfair trial. These raise concerns about human rights and natural justice. There is also no provision for the withdrawal of an EAW and so people could be arrested every time they try to leave or enter a country.
Directors of UK companies who are based outside the UK need to be alert to the fact that they can be prosecuted for regulatory offences and an EAW can be issued to force them to return to the UK. Likewise, directors of European companies who live in the UK need to take responsibility for the health & safety and environmental obligations of their company because, if prosecuted in their individual capacity, they can be extradited under an EAW from the UK to Europe to face prosecution.