European Arrest Warrant Tag

Habeas Corpus in Extradition

European Arrest Warrants (EAW) strictly speaking, have no operative value in England and Wales. Instead, we have the Extradition Act 2003 that allows one’s extradition to be acted on if there is a Part 1 or a Part 2 warrant. Part 1 warrants are presently only for EU territories and therefore EAWs are incorporated through the Act.

To qualify as a Part 1 warrant, section 2 of the Act must be complied with. Part 1 warrants are separated into two categories – accusation and conviction cases. The information required for accusation and conviction cases is set out in section 2 in very clear terms.

What happens if a Part 1 warrant does not comply with section 2?

Cando Armas

It has been argued that if the warrant does not comply with the requirements in section 2, then there is no power of arrest and remand, and that person should be discharged immediately. This was the position in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1. Strict compliance was necessary; at paragraph 24, the Court said ‘the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statue.’ Cando Armas is very clear that there is no scope for correcting any deficiency in the purported Part 1 warrant.

However, since the UK opted back into the Framework decision on EAWs, there has been a sea-change in this interpretation. The position and practice at Westminster MC now, is to allow the CPS, acting on behalf of the Judicial Authority, to obtain further information to correct the deficiencies in the purported Part 1 warrant. In the meantime, a person may be remanded into custody or on bail. Some EU countries are very cooperative and will provide further information quickly, others not so. In the meantime, a person’s liberty is at stake.

Arguably, Cando Armas is still good law but there is certainly conflict and tension in the interpretation of section 2 of the Act, especially so with the case of Di Benedetto and Alexander [2017] EWHC 1392 (Admin) which we explored in our articles Can further information be admitted in Appeal hearings? and Extradition ordered for Tarik Chadlioui; what next?

Habeas Corpus

A habeas corpus application may be an appropriate remedy if you have someone in custody on an invalid and/or deficient Part 1 warrant. The availability of this remedy was confirmed in Pinto v the Governor of HMP Brixton [2004] EWHC 2986 (Admin).

However, if a person is remanded on conditional bail following an invalid and/or deficient Part 1 warrant, perhaps an appeal by case stated may be an appropriate avenue. Westminster MC’s practice is to remand a person on stringent bail condition in extraditions proceedings. Conditions of residence, curfew, reporting and a security are the norm. They too interfere with a person’s liberty, albeit in a less intrusive manner. As far as we are aware, this has not yet been litigated in the courts.

It is important that anyone facing extradition has a specialist extradition solicitor study the EAW/Part 1 warrant to ensure that it complies with section 2 of the Act. The onus lies on the requested person to raise this issue, if there is one, at the initial hearing. Ideally, the issue of the validity of the warrant should be dealt with ahead of the full extradition hearing.

Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.

Cheryl Low, Solicitor

JFH Crime secures the discharge of Romanian EAW

Extradition victory

Solicitor John Howey has secured the discharge of a Romanian client who was facing extradition under EAW (European Arrest Warrant). on the grounds that his extradition would breach his Article 3 Human Rights. This is the result of the High Court decision in Grecu and others.

In that case, the Court followed the decision of the European Court of Human Rights in Muršic v Croatia, where the ECtHR ruled that every person extradited must be guaranteed at least 3 sq meters of cell space. Previously, the High Court had drawn a distinction between prisoners held in closed conditions, which required 3 sq meters, and prisoners held in open or semi-open conditions, where anything over 2 sq meters was held to be sufficient.

The Romanian authorities have, in a number of cases, provided assurances that persons extradited to Romania would be guaranteed 3 sq meters in both open/semi-open and closed conditions. In our case, the Romanian authorities were only able to guarantee 2 sq meters, because of the part of the country our client is from and the prison conditions in that part of the country.

EAW; are prison conditions settled in Romania?

The conclusion we can draw from this is that the prison conditions issue is far from settled. Longer term prisoners will continue to be held in closed conditions, where 3 sq meters appears to be routinely guaranteed. Whether or not the Romanian authorities can guarantee short-term prisoners adequate cell space will depend on the part of the country they are from, which dictates where they would serve their sentence.

Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.

John Howey, Senior Solicitor

Extradition ordered? What happens next?

If your extradition is ordered on an European Arrest Warrant, you have 7 days to apply for permission to appeal. You must send your appeal to the Court, the Crown Prosecution Service (CPS) and the National Crime Agency. There is a fee to pay when it is submitted. You can also submit a legal aid application at the same time. If you do not submit an appeal, then your extradition should take place within the next 10 days. This is known as the ‘relevant time period’. You cannot be removed within the first 7 days after your extradition is ordered.

You can apply to be discharged if you are not extradited within the relevant time period. Westminster Magistrates’ Court hears these applications. However, it is likely that the CPS would apply for an extension of the relevant time period. The CPS are able to make this application even after the 17 days have passed. However, they will have to account for any unexplainable delays on their part.

Conditional bail

If you are on bail during the proceedings, it is most likely that you will stay on conditional bail after extradition is ordered. The Judge may add further conditions such as an increase in the security or further reporting conditions. A common extra condition is to keep a mobile telephone with you, charged and switched on 24 hours per day. The local police will contact you once transport is arranged. You will have to surrender yourself at a police station or airport. If you do not (like Julian Assange) you will be committing a separate criminal offence under the Bail Act.

You should take all your paperwork with you. This includes information about the you spent in custody or your bail conditions as the time spent in custody or on curfew may be taken into account.

Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.

Can I get bail in my extradition case?

Bail in an extradition case is decided in a similar way to bail in criminal cases in this country. The law is contained in the Bail Act and the Criminal Procedure Rules. However, the rules are very different to many other countries. The short answer to the question ‘can I get bail’ is yes, you can. Whether you do get bail or not will depend on a lot of things.

The offence

The District Judge is likely to be worried that if you are granted bail you might not turn up at Court. So the first thing the Judge will want to know is if you are already convicted, or if you are ‘accused’. If you are wanted to stand trial for an offence, you are ‘accused’ . An accused person has a much better chance of being granted bail than if you have been found guilty and have a sentence to serve. If you are convicted, you will be wanted to serve a sentence. The longer the sentence is, the less chance you will have of being granted bail. Even if you have not been convicted, the more serious the offence, the less likely you are to be given bail.

5 other considerations to grant a bail in extradition

Apart from the offence, the sorts of things that the District Judge will think about when deciding whether to grant you bail will include;

1. How long you have been in this country
2. The circumstances in which you came to this country. For example did you come to this country the day after you were arrested in your own country? Or were you never actually arrested and knew nothing about it?
3. Your situation in this country; are you working? Do you have family and in particular children who depend on you? Have you got an address you have lived at for a long time? can you be given a curfew there, so the authorities know where you are at certain times of the day?
4. Have you committed offences in this country, or have you shown that you can abide by the law since you got here? Having convictions in this country, or lots of convictions in your home country, can also be a problem. The District Judge might think that you will commit more offences here. It is even more difficult if you are already on bail in this country.
5. Can you hand in your passport and your ID documents, so you cannot leave the country?

Can someone pay a security?

But the most important thing is whether someone can pay a security for you. This is a sum of money, the more the better, that is paid to the court. As long as the person attends court when they are supposed to, and if they are to be extradited they turn up where they are supposed to be, the money will be given back. If the person does not turn up, some or in most cases all of it will be kept by the court.

Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether your would be eligible for legal aid for extradition matters. You can read more about the basics of extradition here. We have a dedicated team of lawyers specialising in extradition who are here to help you.

John Howey, Senior Solicitor

Can I challenge my Extradition?

Most people arrested on an extradition warrant understandably want to fight their extradition. However, there are only a limited number of challenges that can be raised to a valid extradition warrant. If it is a European Arrest Warrant (EAW), the District Judge hearing the case does not look at the evidence against you in the country asking for your return. They are not concerned with whether you are guilty of the offence or not. They are simply dealing with a request for you to be extradited to be dealt with under the law and procedure in the requesting country.

The passage of time

There are 10 ‘bars’ to extradition in the extradition act. The most commonly used of these (apart from Human Rights issues) is the passage of time, where a person argues that because of the amount of time that has passed since the offence it would be ‘unjust’ or ‘oppressive’ to extradite them. Although it is common for long periods of time to pass between the offence and a person’s arrest, most people are not able to use this as a reason to oppose their extradition. If a person knows about the case but decides to leave the country and this causes the delay, they cannot say that the amount of time that has passed means they should not be extradited.

The forum bar

One bar to extradition that is rarely used at the moment but is likely to become more common is the ‘forum’ bar. That can be used when a lot of the criminal activity is said to have happened in the UK and it is in the interests of justice that the person should not be extradited. The effect of extradition being barred in this way is likely to be prosecution in this country, but there are many reasons why someone might want to be dealt with here, rather than in another country.

Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.

John Howey, Senior Solicitor

Tension between the UK Supreme Court vs ECJ jurisdiction post-Brexit, from a EAW perspective

Earlier this week it was reported that the Brexit Secretary, David Davis, plans to give the UK Supreme Court the final say in deciding extradition requests for British citizens under any post-Brexit European Arrest Warrant (EAW) system.

We do not know whether this proposal means that the UK courts, when dealing with non-British citizens, will continue to have the benefit of referring questions to the European Court of Justice (ECJ), but it is difficult to see how this would work in practice. It is unlikely to be the case, and perhaps David Davis meant that the UK should remain in the EAW system but have an arrangement similar to Iceland and Norway.

Surrender procedure agreement between the EU and Iceland and Norway

Iceland and Norway signed an agreement with the EU on 21 October 2006 to implement the EAW. The agreement is largely based on the same the framework decision that all EU states are operating on with two important distinctions.

Norway and Iceland were granted a ‘nationality exception’ whereby both countries and EU Member States may declare that their own nationals will not be extradited unless authorised in certain specified conditions. There is also a provision for reciprocity if one country makes such a declaration. This means that if the UK declares that they will not extradite any British citizens, then the other EU Member States may reciprocate and will not extradite their own citizens to the UK. We query whether this conflicts with the principle of mutual trust and respect that underpins the EAW system.

The agreement with Iceland and Norway is not yet in force and there is no indication when it will be. It is uncertain how this agreement will work in practice. In any event, the Icelandic government has decided not to avail themselves of the nationality exception opt-out.

Although Iceland and Norway are not subjected to the ECJ’s jurisdiction (except for EEA matters), they have agreed to periodically review and take into account the ECJ’s decisions on the EAW. If the UK adopts the same agreement as Iceland and Norway post-Brexit, then ECJ’s decisions may be persuasive, albeit not binding authorities. This brings about its own host of uncertainty. Lord Neuberger has foreseen this and on 8 August 2017, he publicly sought for clarity from the government on how the UK Judges should approach ECJ’s Judgements post-Brexit (BBC News report here).

We have previously discussed -in our article The EAW after Brexit– why we feel that it is unworkable for the UK to retain the EAW and exclude itself from the jurisdiction of the ECJ. The latest proposals simply underline the uncertainty that Brexit will bring to the EAW scheme and the UK’s place within in it.

Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.

Cheryl Low, Solicitor

Extradition; What happens when I get to Court?

If you have been arrested on a European Arrest Warrant, it can be a daunting experience. The first thing to do is to make sure you get a solicitor. There are always duty solicitors available at Court, and they can help you at your initial hearing free of charge. Alternatively, you can contact a solicitor of your choosing.

In the courtroom

When you appear in court you will be asked your name and date of birth. The representative from the Judicial Authority will tell the District Judge what the warrant is about; which country it is from, if it is an accusation or a conviction warrant, what the offences are and what sentence has been imposed if it is a conviction warrant. The District Judge will want to know if you have been given a copy of the warrant and if you accept that you are the person named in the warrant.

Should you consent to your extradition?

The next step is to ask if you consent to your extradition. This is a big decision. If you consent then that is the end of the matter. You cannot change your mind later on, and you cannot appeal against the decision to extradite you. If you consent, you will be returned to the requesting state quicker than if you contest your extradition. You should be returned within 10 days, although that time can be extended whilst arrangements are made for your flights etc.

If you do not give your consent, then the District Judge will want to know the grounds on which you oppose your extradition. There are a number of statutory bars to extradition, and many people rely on the Human Rights Act. Once the issues have been identified, a date for the full hearing will be fixed and your case will be adjourned until then.

Want to know more? 

If you want to know more about the extradition process, you can find out more here.

If you need help and advice on an extradition case, please contact John Howey, jhowey@jfhlaw.co.uk, or on 0207 388 1658.

John Howey, Senior Solicitor

Extradition: I didn’t attend my original trial, can I have a retrial?

In a recent case we dealt with, our client had left his home country as he was being threatened by other people and was in fear for his life (he had won a kicking boxing fight where a large amount of money had been bet on his opponent to win). When he left, he had never been questioned, arrested or appeared in court for the offence that he was wanted for. The first time he knew about it was many years later. He found out when his mum told him a letter had arrived saying he had a three year sentence. He was arrested in this country over 10 years after the offence had allegedly occurred. The European Arrest Warrant gave no guarantees of a retrial.

The prosecution argued that the client had deliberately avoided the trial. The District Judge decided that he had not, and that he must be guaranteed a retrial. Because the EAW did not give him the necessary guarantee, he was discharged and able to stay in this country.

When a retrial is not guaranteed

Many people who face extradition are wanted to serve sentences for offences that they were convicted of at a trial that they did not go to. If that is the case, the person must be guaranteed the right to a retrial, otherwise extradition cannot take place. The one exception to that guarantee is if the person has deliberately avoided the trial, usually by leaving the country. If that is the case, then there is no need for a retrial to be guaranteed.

Please contact John Howey on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.

If you want to know more about other aspects of extradition, read our guide to the basics here.

John Howey, Senior Solicitor

Romanian prison conditions; update

The Daily Mail has reacted with its usual predictable outrage and lack of understanding to the recent decision of the High Court in the case of Grecu & Bagarea v Romania. This is the latest case in the ongoing saga of Romanian prison conditions.

Romanian prisons and the Article 3 Human Rights

There have been a number of cases both in this country and throughout the rest of Europe where people who are wanted by Romania have sought to challenge their extradition on the grounds that it would be a breach of their Article 3 Human Rights. It is widely accepted that the prison conditions in Romania are very poor, both in terms of the space allocated to an individual prisoner and the overall conditions.

Challenges in this country have been brought mainly in relation to the amount of space that prisoners are held in. In previous cases, the Court has decided that the amount of space that a prisoner would normally have is not enough. However, the Romanian authorities have promised that people extradited from the UK would be held in better conditions, with more space. Evidence from people later extradited has made it clear that this is not happening, and the Romanian authorities have accepted that there are problems.

At some point, the High Court is going to have to decide whether the Romanian assurances can be relied upon, as they continually breach them. The signs from other courts in Europe, and in particular from a Croatian case heard in the European Court of Human Rights, is that patience has run out.  Our article JFH Crime secures the discharge of Romanian EAW, talks about the latest update from September 2017.

Another ‘last chance’ for Romania

Contrary to the Daily Mail’s view, the High Court has not said that Grecu and Baggarea can stay in this country. They have allowed the Romanian authorities ‘a final opportunity’ to provide the necessary undertakings, despite Romania having had a number of ‘last chances’. The Court appear to acknowledge that if the Romanian authorities cannot do so, there can be no extradition to Romania until the problem is resolved. It is likely that the High Court will make a decision in this case in the next few weeks, but do not expect that to be the end of the matter.

Please contact John Howey on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether your would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.

John Howey, Senior Solicitor